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Showing 21 to 40 of 190 Records
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1985 (5) TMI 237 - CEGAT MADRAS
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... ... ..... he Department might be within its right to contend that the amount due to the appellant need not be adjusted and given a set off, the Department will not legally be in a position to demand the amount due from the appellant since the same, as stated above, is clearly barred by limitation under Section 11 A of the Act. Even though, the issue has not been approached in this perspective by the authorities below, since the question relating to limitation is a question of law, it is perfectly open to the appellant to plead the same in defence to the demand of short levy by the Department. I, therefore, hold that the demand of short levy by the Department is not legally sustainable and the Show Cause Notice issued by the Department and referred to above is clearly barred by limitation under Section 11A of the Act. In this view of the matter, I hold that the impugned orders appealed against are not legally sustainable and the same are set aside and the appeal is accordingly allowed.
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1985 (5) TMI 236 - CEGAT MADRAS
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... ... ..... in terms of the direction of the Department itself by way of trade notice-should be treated as the date of claim. 4. It has been held by a Special Bench of the Tribunal in the case of ‘Neelamalai Tea/Coffee Estates and Enterprises Ltd., Nilgiris v. Collector of Central Excise, Madras’- 1983 E.L.T. 2426 (CEGAT)-that the date of filing of declaration with the Assistant Collector should be the relevant date for purposes of claim for refund. Again this Bench consisting of the President and Brother Rao has held that a decision of a three-Member Bench should be followed by other Benches of the Tribunal-C. Appeal No. 162 of 1983 dated 30-4-1985 in the case of S. Roman, Paramakudi v. Collector of Central Excise, Madurai’. Following these decisions, we allow both the appeals with consequential relief to the appellants. 5. In view of the manner in which the appeals have been disposed of, we are not advisedly dealing with point (a) raised by the appellants.
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1985 (5) TMI 235 - COLLECTOR OF CUSTOMS (APPEALS), BOMBAY
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... ... ..... d. This involves preparation by chemical reaction. Although, in the process, the characteristics do not get changed, precipitation involves removal of impurities making silica into a better grade. 4. Now the description in the impugned notification stipulates that silica employed as extender, suspending agent filler, or diluent stands exempted thereunder. The notification thus qualifies the “mineral” by its use. It does not suggest that a mineral so employed should be natural or processed. At Sl. No. 2 of the same notification where other minerals are listed the qualification is made that these minerals should be natural in origin. Since no such exception exists in the description at Sl. No. 1, it has to be presumed that the term “mineral” does not exclude silica or mineral just because they are precipitated. 5. Thus, the appeal succeeds. The benefit of exemption notification 23/55-CE shall be extended to the goods and resultant refund paid.
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1985 (5) TMI 234 - CEGAT NEW DELHI
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... ... ..... , a question could have arisen if the Appellant could have been duly appointed as the Agent of the Ministry of Agriculture in the Govt. of India, even if it were assumed that the benefit of the contract between the M.M.T.C. and M/s. Woodward and Dickenson was duly assigned and accordingly the said Ministry in the Govt. of India became the owner thereof and hence the importer. A contract of Agency, like any other contract concluded for the Govt. of India, has to comply with the mandatory requirements of Art. 299 of the Constitution. It is a moot point if the two letters adverted to in para 3(d) and (e) of my learned Brothers’ judgment comply with such requirements of Art. 299, so as to constitute the Appellant as an agent of the Govt. of India. 8. These issues have not been gone into apparently in the earlier decision of the Tribunal. However, since they are of little consequence, as already observed, I agree in the order proposed to be made by my learned Brothers.
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1985 (5) TMI 233 - CEGAT MADRAS
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... ... ..... le doubt” is the measuring yardstick in a criminal prosecution before a criminal court whereas “preponderance of probabilities” would be the criterion before adjudicating authorities. Therefore, the standard of proof cast on a prosecuting agency before a criminal court in a criminal prosecution cannot be contended to be a guiding factor in adjudication proceedings before quasi-judicial authorities. I therefore hold that the ratio in the Board’s ruling referred to supra is not applicable to the facts of this case. 7. Taking into consideration the facts and circumstances of this case I find that the impugned order appealed against is clearly sustainable in law. Having regard to the fact that the value of the gold under seizure is very substantial I feel that imposition of a penalty of ₹ 10,000/- on the appellant cannot be said to be either harsh or excessive warranting any further reduction. I therefore dismiss the appeal as devoid of merits.
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1985 (5) TMI 232 - CEGAT NEW DELHI
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... ... ..... any invoices to show that separate and undeclared invoices were raised by the appellants. 6. In a number of cases it has been held that when normal period of limitation, viz., six months is sought to be extended to five years, detailed allegations must be made so that the assessee has a chance to defend himself against the allegations. In this case no such allegations were made in the show cause notice and it was Km Rule 10 which was invoked. Rule 9 cited in the show cause notice is not relevent to the present case as these was no clandestine removal. 7. In the circumstances I hold that no case has been made out by the Revenue for enlargement of the normal time-limit to five years. The period of demand in this case was for 1-1-1979 to 31-12-1979 and the show cause notice was issued on 10-6-1980. The demand is ordered to be modified so that the duty will be charged only for six months prior to the date of the show cause notice. The appeal is allowed in these terms.
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1985 (5) TMI 231 - CEGAT NEW DELHI
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... ... ..... on dated 6-4-1977 after the controversy about the applicability of the notification to mopeds had arisen, cannot be said to be contemporary construction of the notification. The two rulings would, therefore, not be applicable in the case of the construction contained in the letter dated 6-7-1982. We, therefore, do hot accept Shri Lakshmikumaran’s argument also. We ignore the letter in coming to any finding in the matter. 19. As a result of the discussion aforesaid, we hold that the appellants’ product Luna Moped does not qualify for exemption under Notification No. 52/77, dated 6-4-1977. 20. In coming to the above finding we have not taken into consideration the horse power of the engine, the distance for which the product could be pedalled or the use of gears in the product. We have, however, upheld the orders passed by the lower authorities on a reasoning slightly different from that adopted by the lower authorities. The appeal fails and is dismissed.
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1985 (5) TMI 230 - CEGAT MADRAS
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... ... ..... law meriting the reference to the High Court. 4. I am afraid I cannot accede to the submission of the learned Counsel for the applicant. It is a settled proposition of law that in respect of an appeal before an appellate authority the whole is at large. When the Tribunal has confirmed the finding of the adjudicating authority with reference to the charge of contravention against the applicant, imposition of penalty would be a matter within the judicial discretion of the Tribunal, and in the instant case the Tribunal has given clear reasons for reducing the penalty of ₹ 10,000/- imposed by the adjudicating authority to ₹ 9,000/-. This imposition of the penalty in exercise of judicial discretion by a statutory Tribunal on the basis of the factual evidence before it would not be a question of law meriting reference to the High Court. In this view of the matter I do not find any substance in the application and the reference application is accordingly rejected.
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1985 (5) TMI 229 - CEGAT MADRAS
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... ... ..... n how the Collector of Central Excise could purport to exercise any power of discretion in the matter of condemnation of the delay in the rebate claim preferred by the party as he did in this case though against the party. Even though procedural law is generally retrospective in operation if an amendment to a procedural law makes vital inroads into the substantive and accrued rights of the person in such a situation unless the law is made retrospectively applicable by express provision or by necessary implication. Courts have consistently taken the view that it would not be retrospectively applicable. Be it that as it may, this question is purely academic in the factual background of this case. On a consideration of all the submissions of the learned Senior Departmental Representative, I am of the opinion that no question of law emanates out of the order of the Tribunal referred to supra meriting reference to the High Court. The Reference Application is, therefore, rejected.
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1985 (5) TMI 228 - CEGAT NEW DELHI
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... ... ..... herefore, looking to Rule 1 of the Rules of Interpretation of the First Schedule to the Customs Tariff Act, the assessment of the items on merits would appear legal and justified. It may be mentioned that apart from claiming assessment under Heading 84.15(1) like the Freezer itself, the appellants have not urged classification in respect of the three items under any other Heading of the Customs Tariff Act, nor has it been urged that the assessment made on merits is wrong. This observation has become necessary in view of the observation made by the Collector of Customs (Appeals) that two of the items could have fallen under Heading 84.59(2). Considering the foregoing, we do not enter into the question whether the assessment of the three items on merits otherwise than under Heading 84.15(1) is correct or not. 13. As a result of aforesaid discussion, we hold that the three items do not merit classification under Heading 84.15(1). As a result, appeal fails and is dismissed.
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1985 (5) TMI 227 - CEGAT NEW DELHI
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... ... ..... Aluminium Utensil if the source of energy is not electricity. It is nobody’s case that the respondents’ product has electricity as a source of energy. 6. It has been urged that in the advertisement the respondents have claimed several virtues for Tandoor; therefore, this would not merit classification as aluminium utensil. The classification of goods in a particular tariff item depends on the facts and circumstances of each case as held by Bombay High Court in Blue Star Ltd. v. Union of India and Ors. - 1980 ELT 280 (Bombay). An advertisement by way of attracting the customers can be no criterion for deciding duty liability in a particular tariff item because it is usual for an Advertiser of a product to claim all possible virtues for the product; it would be erroneous to rely on all these virtues for classification of the product. For the foregoing reasons, finding no force we dismiss the appeal and uphold the order of the Collector of Central Excise (Appeals).
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1985 (5) TMI 226 - CEGAT NEW DELHI
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... ... ..... er the Assistant Collector had approved the appellant’s classification list in terms of Notification No. 79/82, dated 28-2-82 (even when Notification No. 297/79 was in force) the Superintendent, Central Excise, without the approval of the classification list having been challenged before some superior authority and without any change in law or tariff item or fresh facts having been discovered, could have issued show cause notice relying on the Notification No. 297/79, dated 24-11-79 proposing to revise the classification list approved by a superior officer because this aspect of the matter has not been argued by the appellants. 15. For the foregoing reasons I would hold that it is not established that the process of hydro-extraction is a process of manufacture within the meaning of section 2F of the Central Excises and Salt Act, 1944. I would, therefore, allow the appeal. Order . - In accordance with the decision of the majority of the Members, the appeal is dismissed.
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1985 (5) TMI 225 - CEGAT NEW DELHI
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... ... ..... ew that Rule 12 and the notifications issued thereunder would prima facie have no application to the facts of that case where also the bunker supplies were effected from bonded tanks. We then noted that the very issue as in that case (as also herein) came up before the Delhi High Court in 1981 E.L.T. 642 in an analogous case. The Court held that even in respect of export of goods under Rule 13 from bond, duty was payable to the extent required to be paid in respect of export of goods under claim for rebate of duty in terms of Rule 12. No contrary decision was cited before us then or even now. Apart from the Tribunal’s Order No. 339/1984-C, dated 21-6-1984 in Appeal No. ED(SB) (T) A. No. 343/81-C filed by Bharat Petroleum Corporation Co. However, the Delhi High Court decision had not been cited before us in that case. 13. Following the Delhi High Court’s decision, we hold that the impugned Order is not correct which we, therefore, set aside. The appeal is allowed.
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1985 (5) TMI 224 - CEGAT NEW DELHI
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... ... ..... acts, the Madras High Court have allowed the Project Import concession for similar equipment imported by Das Colour Laboratory. 5. From the Department side, in the course of oral submissions, the arguments contained in the orders of the Assistant Collector and the Collector (Appeals) have been reiterated. On a specific query, as regards the judgment of Madras High Court in the case of M/s. Das Colour Lab., the department have stated that they have no comments to offer. 6. We have carefully considered the facts of the case and the submissions made before us. In view of the judgment of the Madras High Court in the case of M/s. Das Colour Lab. and, in the absence of any judgment of any other High Court or the Supreme Court taking a contrary view, we feel that we do not need to go into the merits of the arguments put forward by the department and we set aside the order of the Collector of Customs (Appeals), Bombay, and allow the appeal with consequential relief to the appellant.
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1985 (5) TMI 223 - CEGAT NEW DELHI
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... ... ..... opinion that the Basic Excise Duty payable by the appellants should have been calculated with reference to the duty payable by them on the manufactured goods after relief is afforded to them under all three Notifications in respect of duty payable thereon. This was what had been done by the appellants. We, therefore, hold that the demand for payment of duty as raised in the show cause notice and the confirmation thereof under the orders subsequently passed by the lower authorities cannot be sustained. 10. Shri Mehta further points out that though a penalty had also been levied and the same was also questioned before the Appellate Collector, the order of the Appellate Collector had not considered this matter at all. This is no doubt so. But in view of the earlier findings, it follows that the order for imposition of penalty cannot also be sustained. 11. Accordingly, this appeal is allowed and the orders of the lower authorities are set aside with consequential relief, if any.
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1985 (5) TMI 222 - CEGAT NEW DELHI
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... ... ..... is not diligent but is guilty of laches and negligence and does not take appropriate steps for pursuing his remedy till about the close of the period prescribed for an action to be taken, he cannot claim to have the delay condoned if per chance or by accident he happened to have exceeded the prescribed period in taking the proper steps.. ..” 5. When a statute prescribes a period of limitation it is not without any meaning and when the time prescribed for an action runs out, the adversary is entitled to assume that the decision in his favour has come to stand so that such party would work out his activities accordingly. We are not convinced that there is sufficient cause for not presenting the appeal within the period of 90 days from the date of receipt of the order by the Applicant Collector. 6. In the result the application for condonation of delay is dismissed. As a consequence of this order, the Stay application as well as the appeal shall stand dismissed.
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1985 (5) TMI 221 - CEGAT NEW DELHI
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... ... ..... the amounts of the reactants and products. 39. We find here a clear proposition that elimination of a byproduct such as water is by no means a certainty ; only a possibility. 40. The learned Mrs. Zutshi said that the two written expert advices preferred before the Bench should not be accepted as they were new evidences. But she herself relied on one of them to buttress her arguments. Furthermore, these are only the opinions of experts on a highly technological and difficult subject. As a matter of fact, we cannot have too much expert opinions in a case like this. At any rate, the Tribunal is at liberty to reject an advice, but these two experts’ opinion is confirmed as we have found, by good and authoritative written works of high repute. They say no more than is said by texts of scientific publications. 41. We accordingly adjudge M/s. Epochemick’s goods not assessable under item 15A. We set aside the orders of the Appellate Collector and the Assistant Collector.
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1985 (5) TMI 220 - CEGAT NEW DELHI
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... ... ..... ities. The question whether manufacture is involved in the process of engraving, is a mixed question of law and fact as observed by my learned brothers. I am, therefore, of the view that this question should not be considered at all at this stage. What is before us, concerns only the levy of duty for the period 1-3-1975 to 29-4-1975. The finding on the question of manufacture covers not only this period but also later period. 11. In Union of India v. Delhi Cloth Mills 1977 E.L.T. (J 177) AIR 1963 S.C. 791 , what was laid down were only guidelines to decide whether or not manufacture takes place. I have already observed that the facts available before us are not enough to come to a conclusion on this question. I, therefore, do not give any finding as to whether the process of engraving the Copper Rolls amounts to manufacture, for the reasons that this ground was not raised before the lower authorities and there is not enough material before us for coming to a conclusion.
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1985 (5) TMI 219 - CEGAT NEW DELHI
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... ... ..... ed in the determination of “undue hardship” in making the deposit, there is nothing to have prevented the legislature from giving expression to it suitably. Nothing could be easier than that. One cannot, however, read those factors into the expression “undue hardship”, in the context in which it occurs, in the absence of a clear legislative intent to include them within the ambit of the said expression. Accordingly, it was held by the Hon’ble Supreme Court in dismissing a Petition for Special Leave by the assessee (No. 7762 of 1984 - M/s. Spencer and Co. Ltd., Madras v. Collector of C.E.) that “undue hardship” (occurring in S. 35F of the Central Excises and Salt Act, 1944 in pari materia with Sl. 129E of the Act) “would include a consideration, inter alia, of the aspect of liquidity possessed by the assessee.” 7. We see no reason to differ from our views extracted supra and the Application is, accordingly, dismissed.
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1985 (5) TMI 218 - CEGAT NEW DELHI
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... ... ..... if suitable for use solely or principally with a particular kind of machine or with a number of machines falling within the same heading, are to be classified with the machine of that kind. Our attention, in this connection, has been drawn to Explanatory Notes of CCCN with reference to Section Note 2 dealing with parts. It is pointed out that, as per these explanatory notes, it is clear that pulleys and pulley blocks are in all cases to be classified in their own appropriate heading, even if specially designed to work as a part of a larger machine. 22. In the light of the foregoing analysis, we hold that the correct classification of the VPS Spindle Speed Regulator is under Heading 84.63, Customs Tariff Act and that the benefit of concessional assessment under Notification No. 350-Cus./76, dated 2nd August, 1976, cannot be extended to the parts imported for their manufacture. 23. In result, the order of the Appellate Collector is upheld and the appeal is dismissed.
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